Hilla v. Gross

• Decision Date: 27 November 1972
• Docket Number: Docket No. 11778,No. 3,3
• Citation: 43 Mich.App. 648,204 N.W.2d 712
• Parties: Leo HILLA and Mrs. Leo Hilla, Plaintiffs-Appellees, v. Erwin J. GROSS d/b/a Gross Construction Company, Defendant-Appellant, George Patzer, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 712

204 N.W.2d 712

43 Mich.App. 648

Leo HILLA and Mrs. Leo Hilla, Plaintiffs-Appellees, v. Erwin J. GROSS d/b/a Gross Construction Company, Defendant-Appellant, George Patzer, Defendant-Appellee.

Docket No. 11778.

Court of Appeals of Michigan, Division No. 3.

Nov. 27, 1972.

Released for Publication March 9, 1973.

Michael N. Freel, East Tawas, for defendant-appellant.

James A. Tuck, Detroit, for Hilla.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, Richard G. Boyce, Alpena, for Patzer.

Before J. H. GILLIS, P.J., and McGREGOR and BORRADAILE, ^* JJ.

J. H. GILLIS, Presding Judge.

Plaintiffs sued George Patzer as owner and Erwin J. Gross as builder for damages sustained when the sun deck at Patzer's cottage fell on plaintiff Leo Hilla.

The jury returned a verdict of $75,000 in favor of Leo Hilla and against defendant Gross; 'zero' damages to Mrs. Hilla on her derivative action for loss of consortium; and no cause of action in favor of defendant Patzer.

Defendant Gross, in building the sun deck, had substituted aluminum support columns for the steel columns specified in the original plans. Mr. Patzer had no knowledge of the substitution. Approximately 2 1/2 years after completion, owner Patzer decided to have a social gathering at the cottage. He and a Mr. Lamb went onto the sun deck to shovel snow while plaintiff Hilla worked below. The sun deck collapsed, causing Mr. Hilla's injuries. Mr. Patzer testified that several weeks before the accident, he noticed that the support columns were silightly bowed from the weight of ice and snow. He had no fear, however, that the sun deck would collapse, and would not have climbed up on it had he thought there was any danger.

On appeal, defendant Gross raises two allegations of error.

First, he contends that the trial judge erred in refusing to give his requested instruction to the effect that if owner Patzer had discovered or should have discovered the dangerous condition of the sun deck, 'then as a matter of law Erwin Gross cannot be liable to the plaintiffs Hilla.'

Defendant Gross apparently labors under the delusion that Michigan still adheres to the 'accepted-work' doctrine. Under that theory, a contractor is absolved from all liability for his own negligence once his work has been completed and accepted by the contractee.

That this is no longer the law in Michigan was clearly stated in Kapalczynski v. Globe Construction Co., 19 Mich.App. 396, 172 N.W.2d 852 (1969); cited for that precise proposition in Hargis v. Dearborn Heights, 34 Mich.App. 594, 601--602, 192 N.W.2d 44 (1971).

The consequence is that the contractor continues to be liable for his negligent work subject to the usual requirements of proof in tort litigation as to negligence and proximate cause.

'(T)he failure of an owner to inspect or to act to prevent harm after discovering that work has been done improperly is not necessarily a superseding cause. Such a failure of an owner subjects him to a liability which is concurrent with that of the contractor, but does not, as a matter of law, absolve the contractor of his negligence.' Kapalczynski, supra, 19 Mich.App. p. 404, 172 N.W.2d p. 856, paraphrasing with approval the holding by the New Mexico Supreme Court in Baker v. Fryar, 77 N.M. 257, 421 P.2d 784 (1966).

Indeed, it is the rare case where the owner's failure will absolve the contractor of his negligence. It is illogical to thus terminate the possibility of liability of the person basically at fault. The subsequent inaction of the owner simply adds him as another possible tort-feasor. See Totten v. Gruzen, 52 N.J. 202, 211, 245 A.2d 1, 6 (1968); 2 Restatement of Torts, 2d, § 452, pp. 486--490.

It is for the jury to determine, then, under proper instructions, the question of negligence and proximate cause as to each defendant.

In the case before us, the trial judge instructed the jury generally as to the meanings of these and other pertinent terms, as to the duty of each of the defendants to the plaintiffs, and as to contributory negligence. In other words, he instructed the jury as to the essential elements of the case. The trial judge is not required to give a...